[Copyrighted Material Omitted]
Jefferson County District Court No. 11CR1150. Honorable Philip J. McNulty, Judge.
John W. Suthers, Attorney General, Rebecca L. Williams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Loeb, C.J., and Ney[*], J., concur.
[¶1] A jury convicted Deanna Lynn Frye of multiple charges arising from drugs found on her person when she was booked into the Jefferson County jail, following her arrest on outstanding warrants for unrelated offenses. Frye seeks a new trial, contending the trial court erred in refusing to suppress her statement made at the jail before having been advised of her right to remain silent that she did not possess any drugs and in responding to a jury question that during a traffic stop, police officers may ask passengers for identification.
[¶2] Alternatively, she contends one conviction for introducing contraband into a detention facility must be vacated or merged because she cannot be convicted twice for having introduced two types of drugs at the same time. This contention raises a novel question in Colorado.
[¶3] We remand to vacate one of the convictions for introducing contraband and otherwise affirm.
I. The Trial Court Erred in Refusing to Suppress Frye's Statement at the Jail
A. Preservation and Standard of Review
[¶4] Frye preserved this issue by filing a motion to suppress that presented the same argument which she now raises on appeal.
[¶5] In reviewing a suppression ruling, " [w]e defer to the trial court's factual findings and will not overturn them if they are supported by competent evidence in the record." People v. Syrie, 101 P.3d 219, 222 (Colo. 2004). But a trial court's legal conclusions " are subject to de novo review." Id.
[¶6] " If a statement obtained in violation of Miranda was admitted as part of the prosecution's case-in-chief, over the defendant's objection, reversal is required unless the error was harmless beyond a reasonable doubt." People v. Vasquez, 155 P.3d 588, 592 (Colo.App. 2006).
[¶7] The facts material to the suppression ruling are undisputed. At the suppression hearing, the officer who arrested Frye and transported her to the jail testified:
before we pass them on to the Jeffco deputies there's a sign outside before you put them in the holding cell that clearly states, if you take any of these items in, you'll be charged with a felony, and I asked her to read it. And I asked her if she had any of those things on her. And Ms. Frye said, I told you a million times, I don't have any of those items on me.
(Emphasis added.) The Attorney General acknowledges that Frye was then in custody but had not yet been advised of her Miranda rights.
[¶8] At trial, the prosecutor referred to Frye's statement in opening, elicited this statement during direct testimony of the officer, and referred to it again during summation.
[¶9] The United States Constitution provides that no person " shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V; see also Colo. Const. art. II, § 18. Under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a criminal defendant interrogated while in custody must be advised of, and voluntarily waive, " his right to remain silent, such that any statement he makes may be used against him, and his right to the presence of an attorney, either retained or appointed." People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008). If " the prosecution has not met its burden of proving that the defendant waived his Miranda rights voluntarily, knowingly, and intelligently, then the statements must be suppressed." People v. Owens, 969 P.2d 704, 707 (Colo. 1999).
[¶10] " While due process of law forbids the use of any statements that were actually coerced by law enforcement authorities, the prophylactic warnings formulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), apply only to custodial interrogation." People v. Figueroa-Ortega, 2012 CO 51, ¶ 7, 283 P.3d 691 (citation omitted). For the purposes of Miranda, interrogation includes " 'any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the ...